GP negligent for failing to follow up non-compliant patient

A patient who demonstrated reluctance to follow her GP’s advice has nevertheless sued her for having failed to more persistently counsel the need to undergo a cervical screening test for the early detection of the cancer with which she was later diagnosed.

Justice Richard Cavanagh’s 51 page reasons for judgement in that case provides an excellent dissection of the anatomy of a general practitioner’s professional obligation to their patients.

Athena Kennedy was a regular patient at Dr Deepika Malhotra’s women’s health practice at St Leonards in Sydney from January 2014 .

One of her first consultations – then aged 32 yrs –  was to report a history of heavy menstrual bleeding and painful cramps and sought advice as to whether she should undergo a pap smear.

Her recollection of the advice she was given – that because she was not currently sexually active the test was not necessary – and not given over the ensuing five years, differed markedly from that of the doctor.

The patient was tragically diagnosed with Stage IIB cervical cancer in June 2020 and underwent treatment.

By May 2023 she developed severe pain in her abdomen when a CT scan revealed a recurrence of the cancer that had metastasised to multiple sites through her body.

The proceedings she filed against the GP in December 2023 for the loss of the opportunity to successfully treat the cancer came before the NSW Supreme Court on an expedited basis.

Because the clinic where Malhotra had conducted her practice had shut down, her treatment records were not available when the statement of claim was filed. They were only retrieved by the medical insurer shortly prior to the trial by way of a subpoena issued to an IT company that had managed the clinic’s computer network.

The paperwork recorded the doctor had told Kennedy – a university educated Iranian professional who arrived in Australia in 2012 – about the need for cervical screening in 2014 and that she had told the GP in April 2015 that she was up to date for the test.

That revelation prompted an alternative case being pleaded that the clinician had that been under an obligation to be proactive from 2015 to 2019 in “reminding, urging and even arranging” for Kennedy to have undergone the necessary cervical screening and to tell her of her eligibility to participate in the national screening program.

The patient’s cross examination regarding each of visit over the 5-year period revealed no alleged inconsistencies in the doctor’s note taking except with respect to cancer screening issue.

Oncological evidence from Professor Jonathan Carter and Dr David Nuns agreed it was likely Stage IB cervical cancer had been present from around June 2019 and  Stage IA cervical cancer some 12 months earlier. Further, precancerous lesions – CIN or dysplasia – were likely present for some five to 10 years before then ie from June 2008 or June 2013.

They also concurred that treatment at the time of a detection of the precancerous change would have prevented the cancer; treatment (a local cervical excision or simple hysterectomy) at stage 1 would have given the patient a 95% prospect of survival; and at stage 1b (radical hysterectomy), a 75% to 80% prospect.

“It is a sad fact that if appropriate cervical screening had taken place at any time up to June 2019, the plaintiff would have had good prospects of survival,” noted the judge.

He accepted Dr Malhotra – a Fellow of the Royal Australian College of General Practitioners since 2008 – was a diligent clinician and that she was no doubt aware of the protocols for preventative cervical cancer screening and the national screening programme.

He observed that a new cervical screening test (CST) introduced in December 2017 reduced screening frequency from two years to 5 years starting at the age of 25 and ceasing at the age of 74 with and enjoyed an 80% participation rate.

The national programme – which is credited for preventing 90% of cervical cancers –  enters women on a national register after their first screening and sends them 5 yr CST reminders and a prompt if they do not attend for a test.

Justice Cavanagh rejected the patient’s account of the pivotal 2014 and 2015 consultations but concluded the GP hadn’t raised the issue of cervical screening between April 2015 and September 2018 and hadn’t followed up the patient to confirm she had undertaken the test in seven consultations after that period.

The extent of a GP’s duty to ensure and confirm a patient’s attendance for other medical treatment and screening tests was canvassed by two experienced general practitioners.

In testimony for Ms Kennedy, James Lynch agreed it was a standard part of managing women’s health to monitor timely cervical screening and to become aware of the results. If a patient was unable to say when the last test occurred, the doctor should consult the national register.

In his view, what the GP had told the patient in 2014 and April 2015 was sufficient but failing to remind the patient of the need for a pap smear from that date until September 2018 did not in his opinion, constitute competent medical practice.

When in September 2018 Kennedy revealed she had not undertaken any pap smear test at all, the doctor “should have ensured as best as possible that the pap smear was done promptly”.

And Dr Malhotra’s failure to follow up the patient as to whether the test had been done on seven subsequent occasions after September 2018 – the first of which only a few weeks later – likewise did not accord with competent general practice.

Lynch conceded there were no written guidelines requiring a GP to find out whether a patient had complied with pap smear advice or follow-up what another practitioner might be doing for the patient.

For the insurer, Kenneth Dobler swore that the kind of follow-up and monitoring advocated by Lynch was widely reserved among his GP colleagues for symptomatic patients to ensure to they had appropriate investigation and treatment.

That level of concern was not required – in his view – in relation to encouraging participation by asymptomatic patients in screening programs.

But conflicting information from the patient or being told they had never taken such a test should raise a concern and cause the doctor to follow-up with the patient within a few months.

Dobler had no criticism of the clinician not raising the need for pap smear in 2016 and 2017 given it was raised in in the years before and after those periods.

Because though that opinion was personal – and not part of the body of peer professional opinion he had otherwise attested to – it provided no defence to Malhotra for her failure to follow up the patient from April 2015 to September 2018.

The duty to act reasonably when a doctor was treating a patient for a potentially serious health issue known to or suspected by the doctor includes an obligation to recommend screening, following up the patient, repeating the advice and if necessary, making further recommendations.

A duty to follow-up patients’ attendances for preventive screening and test outcomes is imposed on medical practices – as opposed to practitioners – by the Standards for General Practice.

Such duty may also fall on the doctor themselves depending on the nature of the relationship with the patient. It does apply in relation to cervical cancer screening – so held the court – to a women’s health practitioner with whom a patient regularly consults.

The judge then applied these observations to the facts.

There was no negligence in in his view in the clinician not enquiring in the April 2015 consult as to who performed the pap smear and when and in not following up the patient’s screening compliance in 2016.

“The defendant was entitled to believe that the plaintiff had chosen to go elsewhere for the screening [and] take the plaintiff at face value.”

And because there was only one 2017 consultation for an unrelated issue, the duty to follow-up did not arise until 2018 when she ought to have known Ms Kennedy was by then due for re-screening given she had last reported being “up to date” in early 2015.

He went on to find the GP negligent by reason of the breach of her duty to follow up the patient in early 2018; and again after September 2018 when the patient revealed she had never done any screening test.

The judge also ruled that the adverse health risks to a patient of not following up the patient about the screening test was reasonably foreseeable and not insignificant.

Almost there, but Ms Kennedy still had to establish that had the GP followed up in the first half of 2018 rather than the second half; or in the first half of 2019 rather than the second half, the outcome would have been different.

In the judge’s view, additional reminders would have made no difference.

“There is no basis on which I could find that, if the defendant had raised the issue at some different time, the plaintiff would have followed the advice, when she did not do so at any other causally relevant time that it was raised,” he concluded.

“I am only able to conclude that, for reasons personal to her, she did not want to undergo the screening or decided not to undergo the screening.”

The case against the GP was dismissed.

Kennedy v Malhotra [2024] NSWSC 576 Cavanagh J, 15 May 2024 Read case

Categories: Medical Negligence , GP Negligence